Ensuring Impartiality through Identity-Neutrality Provisions: the Case of Freedom of Information in Brazil
The Internet has facilitated online services for citizens, but it has also facilitated Internet searches of service-seeking citizens by public officials, triggering conscious or unconscious bias. Via freedom of information (FOI) requests, academics provided evidence of this phenomenon at work. Brazil's Comptroller General (CGU) responded by implementing a check-box in its online FOI requesting system so that requesters could choose to remain anonymous. This innovation is a first for FOI regimes.
In Brazil, as in many other countries, citizens must provide real names and identification numbers (ID requirements) when using public services, whether offline or online. In the case of freedom of information (FOI) laws, among other policies, ID requirements may deter citizens from requesting information, for fear of official reprisals. Indeed, intimidation, aggression, and even violence against FOI requesters are commonplace around the world, particularly in emerging democracies (see India’s Wikipedia page on RTI Assaults). ID requirements also facilitate 'identity-questing' (on the Internet) of service-seeking citizens by officials, resulting in preferential treatment - an affront to governmental norms of impartiality.
Researchers at the FGV-EBAPE (a university/think-tank) found strong evidence of identity-questing and preferential treatment after conducting a field experiment in which identical, FOI requests (with no identifiers in the request) sent to nearly 700 of the country's largest cities – asking for information pertinent to another study on FOI – resulted in high levels of preferential treatment for one among two set of identities (male/female & institutional/non-institutional affiliations). The study showed highly significant levels of preferential treatment in favor of institutionally-affiliated requesters, with these requesters boasting nearly 50% higher odds of receiving compliant responses than non-institutional requesters.
Based on these results and complaints of preferential treatment owing to ID requirements, in 2015 civil society representatives involved in developing Open Government Partnership plans with Brazil's Federal government formally requested protections to ensure identity-neutrality of FOI requesters. Brazil's Federal Comptroller General (CGU) responded by commissioning a report on ID requirements in FOI regimes and their impact around the world and in Brazil. After sharing this 2016 report with the Auditor General and the National Ombudsman's Office, among other agencies, the CGU was able to secure support for a check-box option for citizens to request anonymity. If citizens check the box, details of their identity remain with the CGU, and the request travels to the target agency with no personal identifiers. The innovation is the first of its kind in the world, and is expected to increase the use and efficacy of the federal FOI law.
The effort to secure identity-neutrality was no easy task. Brazil’s constitution includes a provision requiring that citizens identify themselves when making use of government services. Yet the CGU was able to advance the cause of identity-neutrality by a) arguing that citizens who seek accountable government must be protected under the aegis of ombudsman guarantees; and, b) advancing a new law (13.460), whose Article 10 guarantees new protections for citizens. Although impressed with the CGU’s commitment to open government and citizen demands, advocates fear that citizens who check the box as a means of remaining anonymous may trigger red flags among officials, resulting in discriminatory treatment. The optimum option would have all requesters remain identity-neutral by default, checking a box only if they wish to disclose their identity during the requesting process. After all, FOI is a fundamental right, according to UNESCO and the Organization of American States, among other international and regional organizations. Why should citizens be obligated to identity-themselves to practice a fundamental right?
What Makes Your Project Innovative?
Brazil's new identity-neutrality provisions are innovative as both a policy and a policy process of co-creation. As a policy, the ability of freedom of information (FOI) petitioners to guarantee anonymity is the first of its kind in the Americas, if not the world. Only 6 countries have FOI laws that provide Identity-neutrality provisions, but their implementation is uncertain. Identity-neutrality provisions remain few in number internationally, but the scholarly literature increasingly shows that discrimination and intimidation represent threats that are given too little attention. The co-creation process that led to the development of this innovation was exemplary, with citizen stakeholders providing the demands and the evidence, and Brazil's Comptroller General (CGU) responding in a proactive and assertive manner - commissioning a study, fostering consensus, enacting new legislation, and implementing identity-neutrality provisions.
Collaborations & Partnerships
The initiative began by Open Government Partnership meetings including NGOs Artigo 19, ABRAJI (Investigative Reporters) Transparency Brazil, and Transparency International, and academics (FGV and USP). The FGV's Public Transparency Program (FGV-EBAPE and FGV Law School) began to research the problem in 2014, and even wrote about it for the OGP Blog (http://bit.ly/2rd74xe). The Federal Comptroller General was critical in working with advocates and advancing a policy solution.
Users, Stakeholders & Beneficiaries
Beneficiaries of this identity-neutrality provisions include all citizens, especially citizens in politically sensitive positions - journalists, opposition politicians, NGO activists, among others - and citizens with little knowledge of government who may be intimidated by providing their identity.
Results, Outcomes & Impacts
It is still early to report the impacts of identity-neutral provisions in Brazil's federal FOI law, as the innovation went into effect in early November, 2018. We expect an increase in the number of requests and more impartial treatment of citizens.
Challenges and Failures
The challenge was marshaling the evidence to prove - beyond a doubt - that identity requirements were having adverse consequences for citizens. The field experiment undertaken by FGV researchers was fundamental, but the study experienced several false starts as the validity and reliability of the design was repeatedly tweaked before it could take place. Other than that, working with Brazil's Federal CGU was easy, as they are very responsive and highly motivated to improve the quality of government responsiveness and accountability. The only reservation we have is that identity-neutrality is optional for citizens, whereas we believe it should be the default i.e. identifying oneself should be optional.
Conditions for Success
The Open Government Partnership (OGP) meetings were fundamental in bringing together civic advocates to discuss their shared challenges. The ability to coordinate actions among advocates in Brazil is and remains difficult, as each organization is busy with their own agenda and civil society has historically lacked cohesiveness. But once the demands were made at the OGP, the constant meetings and reminders from Brazil's Comptroller General (CGU) were fundamental. The CGU's commitment to the Open Government Partnership and to the cause of good governance was essential. Finally, the integration of academia with government and civil society organizations proved critical, as academics provided the 'hard' evidence while NGOs provided the experience, presented demands, and engaged legal knowledge that helped move the initiative forward.
The provision of identity-neutral guarantees for citizens using public services - online and off - should be replicated in other jurisdictions, across Brazil and abroad. The internet has transformed the relationship between citizens and officials, and norms of impartiality have become more important than ever as populations diversify.
A first lesson is that multi-stakeholder initiatives such as the Open Government Partnership can lead to real policy victories. A fundamental aspect, in this sense, is to join multiple stakeholders in union. The citizens-v.-government relationship is transcended through face-to-face meetings in which more stridently activist citizens (NGOs) are tempered by more research-based citizens (academics) and government. In this sense, academia should be more attuned to the public policy imperatives. Nonprofits have always been there, as have governments, but it is rare to find all three actors integrated. The Open Government Partnership opened up this possibility.
A second lesson is that many of our institutions are simply anachronistic, especially given the changes that are occurring in the internet age. Identification requirements may have been necessary when the digital means of keeping track of individuals did not exist, but now they do. Even so, governments have been extremely slow to change or to realize that the costs of requiring proof of identity or not protecting identities far outweigh the benefits of requiring identity.
A forthcoming article regarding the field experiment will be provided as soon as it completes its blind-review process.